Tomorrow, the federal judge who struck down Utah’s same-sex marriage ban will hold a hearing on whether he should stay his decision and halt same-sex marriages pending the appeal of his decision. The case has already been appealed to the Tenth Circuit.

The Tenth Circuit has just declined to grant a temporary stay (requested by the state) before tomorrow’s hearing. The appeals court said that they must deny the stay because the state’s request doesn’t address the factors for a stay. They wrote that the state can re-file, if the filing complies with the Federal Rules of Appellate Procedure and the district court’s local rules:

Because the motion before us does not meet the requirements of the Federal or local appellate rules governing a request for a stay, we deny the motion. This denial is without prejudice should Defendants-Appellants file a motion for stay pending appeal that complies with Fed. R. App. P. 8 and 10th Cir. R. 8.1.

Along with the Tenth Circuit’s order, the plaintiffs have just filed their opposition to a stay in district court.

The plaintiffs point to the standard factors for granting a stay, first arguing that there was no likelihood of success shown by the state. The state defendants “have simply reiterated arguments already set forth in the briefs submitted during the summary judgment proceedings” and those arguments “were already carefully explored at oral argument, thoughtfully analyzed by the Court, and properly decided in a lengthy, clear, and careful decision.” Beyond that, the cases cited as evidence that the state will succeed in its appeal are all pre-Windsor cases.

Secondly, the state has to show they will face irreparable harm without a stay of the decision. The plaintiffs argue that “because many same-sex couples have already been married in Utah at the time of this filing, the State Defendants’ burden is to show that there would be irreparable harm from additional same-sex marriages being performed” and it’s hard to see, according to the filing, how the state faces irreparable harm, given that “the State failed [according to Judge Shelby’s findings] to show any relationship, let alone a rational relationship, between the purported state interests and allowing same-sex couples to marry.”

The state had argued that absent a stay, there would be a cloud of uncertainty on the status of newly-performed same-sex marriages. But the plaintiffs counter that, “any such abstract “harm” alleged by the State Defendants cannot justify depriving Plaintiffs and other same-sex couples of their constitutional rights, or outweigh the real, concrete injuries resulting to the Plaintiffs which the State Defendants have admitted in these proceedings.”

The state defendants had argued that they suffer irreparable harm whenever the citizens of a state enact something and it’s struck down. In a footnote, the plaintiffs respond that “[t]he State does not suffer irreparable harm where the law that is enjoined is likely unconstitutional. Otherwise, any time a state were seeking a stay of an injunction of an unconstitutional law, the state would win. This would unduly tip the scale in favor of the government in any case challenging a government enactment, and against the constitutional rights of the citizenry.”

And further, “this Court in its decision already recognized that its decision will not create any problem for the state.”

A stay would also not preserve the status quo, because “the status quo in Utah is that same-sex couples are marrying and that many married same-sex couples live in Utah and their marriages currently must be recognized.”

And the plaintiffs would be irreparably harmed if a stay were granted: “Continuing deprivation of Plaintiffs’ (and others’) fundamental right to marriage and equal protection of the law constitutes irreparable harm.” The defendants “ignore that every day a citizen is deprived of constitutional rights causes irreparable harm, but they ignore their own admission of the actual harm Plaintiffs have suffered.”

And last, the public interest is best upheld when Constitutional rights are protected. The plaintiffs point to other cases in which courts declined to stay marriages post-Windsor, because of the conclusion that the state was unlikely to succeed in upholding the ban.

The district court will decide whether to grant a stay tomorrow. The hearing is scheduled for 9AM.

If Judge Shelby had ruled a year ago, he would have issued a stay, even if he had ruled as broadly (& correctly) as he did this week.

It is no longer last year.

4. Scottie Thomaston | December 22, 2013 at 5:21 pm

That's my feeling as well. He would have had no guidance from the Supreme Court on how to approach the question (aside from Baker v. Nelson.) Now that Windsor was decided, judges are getting strong hints that marriage bans are not going to be around forever.

5. davep | December 22, 2013 at 5:22 pm

Nice.

6. Dr. Z | December 22, 2013 at 5:28 pm

Wow, how embarassing for Acting AG Talbot. I imagine Professor Kingsfield's voice from The Paper Chase: "Young man, here is a quarter. Go and call your parents and tell them it is unlikely you will graduate from law school."

BTW would one of the Utahns here please enlighten us gentiles exactly what transpired with the AG so that Talbot had to take over? I heard the old AG may end up behind bars. Could this have been a factor in the State's incredibly amateurish, bumbling legal defense?

7. Bruno71 | December 22, 2013 at 5:28 pm

So basically it just says you have to request a stay pending appeal, not pending a hearing regarding a stay pending appeal. Yeah, that sounds about right

8. grod | December 22, 2013 at 5:42 pm

RAJ Given this link indicates useful information for 5 counties, can you or anyone tell us about what is happening at 8:00 am in the other 24.
With the strong denial of the request for an emergency stay by the 10th circuit court, there may be less pressure to personally act immediately, clerk offices close on Tuesday at noon for the holiday.

9. Scottie Thomaston | December 22, 2013 at 5:54 pm

Not exactly. They're saying that the distinction doesn't change the rules, meaning no matter which kind it is, they have to follow the filing rules. And here, the filing rules say that there are factors the court has to decide, to determine whether to grant a stay. The state basically said to the 10th Circuit "we aren't going to go through those factors." The 10th Circuit is saying they HAVE to, and they can re-file if their brief does discuss those criteria for a stay.

10. Wthayne | December 22, 2013 at 5:59 pm

Up until these court rulings that was Utah's biggest news story. Very long story short, former AG John Swallow lied on election forms and destroyed evidence. He resigned last week.

11. Dr. Z | December 22, 2013 at 6:24 pm

So who's this guy Tarbet who's the acting AG? (not Talbot.) Is he implicated in the scandal too?

12. Chris M. | December 22, 2013 at 6:30 pm

The way I read it, first the state basically insulted the federal judiciary in their request for emergency action by the 10th Circuit Court by not addressing the well-established and required criteria for such action, like immediate, irreparable harm, etc. Now I'm reading in the Salt Lake Tribune that their argument on Monday will be that a stay is in the best interest of gay an lesbian couple, because of the uncertainty of the situation. I hope Judge Shelby will ask them whether gays and lesbians aren't competent to make the decision to get married in this situation on their own. It just seems to me that the State's legal team is either grasping at straws, or is completely incompetent. Is that how they teach Law at BYU?

13. Zack12 | December 22, 2013 at 6:31 pm

The lawyers for the state are picking where they left off in the trial in making themselves look like fools.
Their request for the stay basically boils down to because we want one,period.
Sorry,not a valid legal argument.

14. Chris M. | December 22, 2013 at 6:40 pm

On second thought, maybe there is someone in the AG's office who is deliberately trying to throw the case?

15. Dr. Z | December 22, 2013 at 6:43 pm

From what I've been reading, the tea party/religious right have been lobbying hard this weekend to get Tarbet replaced with a fiery-eyed true believer.

16. Bruno71 | December 22, 2013 at 6:51 pm

I'm not sure any other argument would sound better though. They can argue their sketchy "harms" caused by "homosexual marriage" or however they want to couch the terms, but as we saw even SCOTUS didn't feel there's any tangible harm to anyone by couples getting married. It's almost their best bet to take the "poor gay couples whose marriages will be in doubt" approach. They did that in California, too, and the 9th Circuit granted the stay. That said, these are different times after the SCOTUS cases, and the 10th will likely be much harder-pressed to grant the stay than they would've before.

17. davep | December 22, 2013 at 7:01 pm

Yup. Regardless if they are competent or not, and regardless if anyone in the AG office is 'on our side' or not, the fact is they just don't have any ammunition. They are out of arguments. They were out of them before the trial even began.

18. ebohlman | December 22, 2013 at 7:13 pm

Even before that, since there was never a trial (the case was a summary judgment; UT's legal team may be stupid, but not so stupid as to think that they could find credible expert witnesses to argue points of fact. That one's been left to MI and PA, whose lawyers apparently got their degrees from a different brand of cereal box).

19. FYoung | December 22, 2013 at 7:28 pm

"maybe there is someone in the AG's office who is deliberately trying to throw the case?"

That's an interesting conjecture, and one that I don't think I've ever seen discussed, perhaps because it would imply unprofessional and unethical conduct.

I don't know about its applicability in this specific case, but in the past I have wondered the same thing when reading court cases on same-sex marriage. The media made a big fuss about the precedent that had been set, but when you finally read the case, you find out that the big, iffy issues that the media highlighted as the precedent had actually been conceded, and most of the decision was about obvious or trivial issues. Once the concessions were made, the disposition of the case was obvious.

The other possible explanation, of course, is that the attorney had no expertise in that area of law, and was given insufficient time and assistance to prepare (and, here too, I wondered if that was deliberate).

20. Walter | December 22, 2013 at 7:47 pm

The state does not have anything to argue. They have already been told by the Judge Shelby in his decision that their arguments are ridiculous. The opinion was exhaustive and seemed to cover most everything that one could argue. For instance, Shelby even discussed arguing religious freedom. Yet the state never even made that argument. Thus, what would you do in a case like that? I guess try discussing how gay couples might be harmed in the unlikely event their legal marriages are voided. Then, again maybe try to bamboozle your way through an appeal by making no arguments.

21. Zack12 | December 22, 2013 at 7:53 pm

That is how the bigots got a stay in California. They argued allow gay and lesbian couples to keep marrying even though a ruling could nullify them would be harmful.
And that is what they are trying here,let's hope they don't succeed.

22. Anthony | December 22, 2013 at 7:55 pm

Doesn't the DOMA decision apply here? If they are stayed they cannot access federal benefits because the state won't allow them to legally marry.

23. LK2013 | December 22, 2013 at 8:04 pm

This is wonderful news! I would still get married as fast as I could in Utah before the state thinks up a new way to look out for my welfare by thinking up a new rationale for trampling my rights.

24. JustMe | December 22, 2013 at 8:11 pm

No because this is reversed from the DOMA decision… DOMA was about the federal govt… this is about a STATE govt…

So while analagous, the DOMA decision is distinguishable.

25. Dr. Z | December 22, 2013 at 8:33 pm

From what I read, the acting AG's background is taxation and revenue. The bulk of the legal strategy was created by the old AG, who resigned just before the decision was handed down; he was likely distracted by the criminal investigation into his financial dealings.

26. Dr. Z | December 22, 2013 at 8:48 pm

There are many instances of real harm caused by a stay. The State's argument that a stay would lessen the harm to gay couples is disingenuous. First, the State's assertion that the decision will be reversed is speculative and frankly dubious given the findings in district court. Second, the real harm due to delay is by definition greater than any harm due to a reversal. A delay will cause harm; but because a reversal is only a conjecture, any harm there is speculative.

27. Rose | December 22, 2013 at 9:38 pm

The 9th granted the stay for MANY reasons…….the least included the nearly 18,000 legally married Same-Sex Couples whose MARRIAGES have NEVER been in jeopardy since the ruling by the CSSC in May 2009 in the Strauss vs Horton case!!!

No matter if a stay is granted or not, the marriages that have already been done and are now considered legal will NOT be affected going forward….if the State even remotely tries to invalidate them or nullifies them…..there will be a bigger lawsuit with damages and NO state can afford that!!!

28. James | December 22, 2013 at 10:10 pm

Robert Shelby is a hottie. Dis the bi*** and make the switch. Lol

29. Mike in Baltimore | December 23, 2013 at 3:04 am

Off-topic to this thread, but on-topic to the Marriage Equality case in Federal court in PA (which will soon be on page three, thus almost invisible):

"Pa. Lawyers Accused of Stalling Gay Marriage Case"

Specifically, the law firm of Lamb McErlane of West Chester, PA (the firm hired by the state of PA to defend the state in the Federal courts) is accused of demanding irrelevant, highly private and sensitive information from the defendants.http://www.nbcphiladelphia.com/news/local/PA-Accu…

(I know the article is a week old, but I saw nothing on other threads about this.)

30. grod | December 23, 2013 at 6:33 am

On Aug 10 2010 Judge V. Walker said that although there were no justifiable grounds for a stay, he would defer to the 9th Circuit Appeal Court. Six days later they continued the stay to June 28 2013. On the 26th the Supreme Court said the 9th Circuit Appeal Court had errored in granting standing. A 3 year error, when the grounds for an original stay were not present.

31. grod | December 23, 2013 at 6:39 am

I'm surprised that point has not been made more clearly. Perhaps it will be this am.

32. Dr. Z | December 23, 2013 at 7:12 am

Wouldn't be the first time that well established legal guidelines weren't followed when our rights were concerned. The rules for suspect class and heightened scrutiny are clear too, but federal courts all the way up to SCOTUS have found it inconvenient to actually follow the rules in our case and have instead offered a series of excuses for not acting. This is part of a longstanding pattern dating back to Bowers v Hardwick and further back to Stonewall and before.

Did the 9th Circuit err in granting the stay? Well, they didn't follow their own rules because they were afraid of how SCOTUS would react, so yes.

Did the Supreme Court of Oregon err in their ruling invalidating 4000 same-sex marriages that were legally entered prior to the passage of Oregon's DOMA law, when there had been no law against SSM and the state constitution forbade discrimination on the basis of sexual orientation? Yes, the Oregon SC got it wrong too (and they have two openly gay justices!)

33. Dr. Z | December 23, 2013 at 7:17 am

[Lamb's voice over telephone during discovery]: "What are you wearing? Take it off."

34. RAJ | December 23, 2013 at 7:24 am

Reports of the first gay couple being turned away at the Utah county registrar's office, while heterosexual couples are still being processed.

35. Randolph Finder | December 23, 2013 at 7:36 am

And if Swallow hadn't resigned, the Legislature was going to impeach and convict him. In fact even though he's resigned, the legislature doesn't see any reason why they should *stop* the investigation. I wouldn't count on Swallow avoiding jail time at the rate things are going.

Sounds like the Registrars are waiting for the 9:00 decision before proceeding with same-sex couples. Technically they are in contempt, but that might change in a few minutes . . .

41. B&E | December 23, 2013 at 7:59 am

Are there any media, or news outlets that will be live blogging today's request for stay?

42. RAJ | December 23, 2013 at 8:20 am

On the upside, Equality Utah, (which is a good resource right now) reports Morgan, Davis, Washington counties open and issuing licenses. Sounds like some counties are too jammed to get through today, but other counties are not.

This is their last post:
"Davis county lines are less than 100 people. Great chance of getting through the lines there. If u can make it to Davis county, that's the fasts way to get through Let us know how it goes."http://www.equalityutah.org/newsroom

the motion is denied to the extent it asks this court to stay the
district court’s order pending that court’s resolution of the State’s motion for stay
pending appeal. Likewise, the anticipatory request to stay the district court’s order in
the event of an adverse ruling is also denied.

But the 10th did leave open the chance for the state to file again after (if) the district court denies the stay. Have to do things in the proper order. I'm sure Utah doesn't want to leave a 5 minute gap where the wrong people might get married while the briefs are being shuffled again. I mean, that could be the end of everything! Yes, it well might

Report at the Utah County Registrar's office of a 3rd same-sex couple denied about a half hour ago — with some bystanders expressing condolences and unhappiness to those involved.

59. StraightDave | December 23, 2013 at 10:16 am

Although the scope of the ruling was specifically limited to death certificates, the judge left a big ominous warning in his ruling: "once you get married lawfully in one state, another state cannot summarily take your marriage away". This is just the first step in the next chapter to uproot DOMA Sect 2, and the related Full Faith & Credit public policy nonsense. More fun and games on tap. We're not likely to get bored any time soon.

60. Paul S | December 23, 2013 at 10:26 am

"The governor of Pennsylvania recently compared same-sex marriage to incest. (Id. at 25)."

Note to hateful anti-gay politicians. Careful, or you will be called out under the "Historical Discrimination" section of future court decisions.

JustMe: Ohio Judge Black just ruled: "The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … [simply because the majority of the voters don't like homosexuality]" Black said . "Under the Constitution of the United States, the answer is no."

63. grod | December 23, 2013 at 10:33 am

StraightDave I don't read the second denial the same way. Can you clarify.

64. grod | December 23, 2013 at 10:37 am

SLC Tribune: Judge Shelby denies Utah’s request for a stay on same-sex marriages. Apparently he also clarified that county clerks need not worry about being prosecuted for issuing licenses.

65. Zack12 | December 23, 2013 at 10:40 am

Dave Agema,the former GOP state rep for Michigian already has gotten called out by one judge in a ruling that helped LGBT couples in MI.

66. RAJ | December 23, 2013 at 10:40 am

Thanks grod, an important detail.

67. Zack12 | December 23, 2013 at 10:48 am

Utah may want to quit while it's ahead if the 10th circuit denies a stay. If the 10th rules on the ban itself and strikes it down,all the states in that area will have marriage equality..

68. JamesInCA | December 23, 2013 at 11:30 am

In what way do you read it differently? The 10th denied their request(s) prior to the district court's ruling on the requested stay, but without prejudice to refiling after the district court's ruling.

69. Craig Nelson | December 23, 2013 at 11:41 am

What an absolutely beautiful and exquisite thought. The State (through the Mormon Church) that did the most to block marriage in Hawaii, found and fund NOM and instigate Prop 8 gets to inaugurate marriage equality throughout the 10th Circuit and with it the Nation. As the saying has it "As Oklahoma goes, so goes the Nation" (I think I have that right…..)

70. sfbob | December 23, 2013 at 11:49 am

Which means that the county clerks that continue to refuse to issue licenses are the ones that don't WANT to issue licenses.

71. Sean from NJ | December 23, 2013 at 11:51 am

That would it ignored not nullified because it's still valid federally and in 18 states.

72. RAJ | December 23, 2013 at 11:54 am

I hear that Utah County is still — still — turning away same-sex couples. I'm waiting for an indication that they've finally come to their senses, but so far, nothing.

73. Zack12 | December 23, 2013 at 11:57 am

According to the twitter feed I'm reading https://twitter.com/EricEthington the clerk is refusing to issue any licenses and has said he is willing to go to jail rather then issue one.

74. bythesea | December 23, 2013 at 12:05 pm

Oh yay, another "martyr" for the religious righties…

75. Bruno71 | December 23, 2013 at 12:13 pm

To join all those other jailed county clerks across the nation.

76. Mike in Baltimore | December 23, 2013 at 3:22 pm

Actually, it used to be "As Maine goes, so goes the nation."

Maine voted in September general elections for Governor, other state offices, Congressmen and Senator. The Presidential ballot was in November. The September ballot was used as an 'indicator' of how the nation would vote two months later.

After the 1936 election, the JOKE was "As Maine goes, so goes Vermont" (VT and ME were the only states to vote for the CONservative Presidential candidate). Some were of the opinion that since the CONservatives won a big victory in Maine in September, Alf Landon would win the national election in November. In actuality, he got 8 Electoral College votes (5 from ME, 3 from VT and 0 from his home state of Kansas).

1936 was the last year that political prognosticators used the Maine September elections as an indicator of how the national elections would go in November. In 1957, Maine ended the September general elections, moving them to November (same date as the rest of the nation).